| OCR Text |
Show 39 As the owner of the public domain, the government pos- sessed the power to dispose of land and water thereon together, or to dispose of them separately. After an examination of all three statutes and decisions con- struing them, the Court added:16S What we hold is that following the Act of 1877, if not before, all non-navigable waters then a part of the pub- lic domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. For since "Congress can- not enforce either rule upon any state," Kansas v. Col- orado, 206 XJ. S. 46, 94, the full power of choice must remain with the state. The Desert Land Act does not bind or purport to bind the states to any policy. It simply recognizes and gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation. The effect of the recognition accorded by these statutes to the doctrine of appropriation, so far as they concern public lands, is subject to certain qualifications, as several de- cisions of the Supreme Court have pointed out. For example, in its 1899 opinion in the Rio Grande case, the Court held that: "9 in the absence of specific authority from Congress, a State cannot by its legislation destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the govern- ment property * * *. "8295U. S. at 163-164. 169 United States x. Bio Grande Irrigation Co., 174 U. S. 690, 703 (1899). |
